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Who should be consulted about employee redundancies?

Under the Trade Union and Labour Relations (Consolidation) Act 1992, when an employer is proposing to dismiss as redundant 20 or more employees at one establishment within 90 days or less, the employer has a duty to consult with the appropriate representatives of the employees who may be affected by the proposed dismissals, or who may be affected by the measures taken in connection with those dismissals. (In Usdaw and another v WW Realisation 1 Ltd (in liquidation) and others [2015] IRLR 577 ECJ, the European Court of Justice confirmed that "establishment" means the entity to which the employees are assigned to carry out their duties, not the employer's organisation as a whole.)

Trade union representatives must be consulted if the union is independent and recognised by the employer to conduct collective bargaining in respect of the affected employees. Where the employer does not recognise an independent trade union for collective bargaining purposes in respect of some or all of the affected employees, the appropriate representatives for those affected employees can be either existing staff representatives who were appointed for some other purpose (such as a works council), and who are authorised by the affected employees to be consulted on the proposals on their behalf, or employee representatives elected specifically for such consultation.

The relevant definition of redundancy for the purpose of collective consultation is a "dismissal for a reason not related to the individual concerned". This includes the situation where an employer proposes to dismiss and re-engage employees who do not agree to a proposed variation of their contract.

Regardless of whether or not the duty to consult collectively with union or employee representatives applies, the employer must carry out individual consultation with employees who have been provisionally selected for redundancy.

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